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Depopulation in Indian Country, 21st Century Style

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A strange thing is happening in and across Indian country: the number of federally recognized tribal nations continues to increase—the Tejon people of California were readmitted to the ranks in early January of this year, bringing the number of such groups to 566—while the population figures for existing federally recognized native peoples continues to decline because of the ongoing number of disenrollments of tribal members.

The disenrollment of ever-increasing numbers of Native citizens has, unfortunately, become a national phenomenon, with native nations in at least seventeen states engaging in the practice. But the small nations of California, over thirty at last count, are leading the charge in the dismemberment of their own peoples. The most disturbing case is that of the Chukchansi people, where over half the population--1,000+ individuals--have been dismembered in recent years.

The New York Times has weighed in on the subject recently, focusing, not surprisingly, on the California scene because of the sheer number of Native communities involved.

The position of tribal officials in California who spearhead such expulsions center around one of two issues: a claim that there are documentary errors involving those on tribal rolls, dating back to the allotment era; or the lack of sufficient blood quantum to justify ongoing membership.

By contrast, those who have been dismembered assert, that the official rationales are pretenses that are concealing what they say are the more realistic explanations for why they have been legally terminated. This includes that tribal governing officials seek to purge their rolls of individuals who challenge their authority; that they are looking to consolidate their political power base and to improve their economic status.

Dismembered natives have little legal recourse to contest their expulsion because native nations, under the Supreme Court's Santa Clara v. Martinez decision in 1978, are deemed the final arbiter on membership decisions. And although the 1968 Indian Civil Rights Act presumably extended to all “persons” in Indian country a modified version of the US Bill of Rights, the only remedy spelled out in that act is the writ of habeas corpus.

Habeas corpus has thus far not offered dismembered individuals any substantial or lasting justice, and since native nations are also sovereign, they can and frequently do invoke the doctrine of sovereign immunity.

Dismembered native citizens are also citizens of the states they reside in and have federal citizenship as well. Theoretically, natives should be the most protected class of individuals in the land, armed as they are with three distinctive layers of citizenship. Such, of course, is not the case.

In regards to native citizenship, however, tribal governments can and are wielding a power—the absolute power to terminate native citizenship--a power that not even the mighty United States government or state governments can wield over American citizens. As the Supreme Court held in Afroyim v. Rusk (1967), citizenship is an inviolable right, and while it can be given away, it cannot be taken away. In other words, involuntary expatriation, that is the stripping of citizenship, is not an available penalty under any state or federal statute. As the court held, “in our country the people are sovereign and the government cannot sever its relationship to the people by taking away their citizenship."

It is true that under federal law there are two routes whereby a US citizen can lose their citizenship: denaturalization and expatriation.

The other route, for natural born or naturalized citizens, is expatriation. An individual can lose their citizenship if they voluntarily perform any of the following acts “with the intention of relinquishing US nationality:” a) becoming a citizen of a foreign state; b) declaring an oath of allegiance to a foreign power; c) joining the military of a foreign state; d) working for a foreign government where one swears allegiance to that state; e) formally renouncing one's nationality-- normally done while one is literally in another country; or f) treason or subversion against the United States.

The question I pose is this: what does it mean that the United States, a very large, heterogeneous, secular state, has in place laws and policies that protect its citizens rights as citizens far more comprehensively than our much smaller, more homogeneous, and ostensibly more kin-based native nations?

Historically, our nations had in place customs, values, ceremonies that protected the integrity and personality of each member of the community. When conflicts arose or when offenses were committed we resolved them through peacemaking, mediation, restitution, ostracism, or negotiation. We rarely engaged in the legal, political, or cultural termination of the rights of fellow tribal citizens because they were, after all, related to us and we sought much less draconian means to deal with the issue in an effort to restore community harmony.

Native nations must find a way to restore or to create new cultural, political, and legal protections for existing citizens, and seek to reincorporate—by first apologizing and then making reparations to—the thousands of natives who have been wrongfully dismembered. This is essential because the very concept of tribal sovereignty means that the people—the tribal community members themselves—are the sovereign, not the governing bodies of those nations. Tribal councils and other governing institutions have merely been delegated limited authority to fulfill the needs and to protect, not destroy, the rights of the people and do not have, or should not have, the power to sever their relationship to their people by taking away that most important of statuses—the status of belonging to, of having citizenship or membership in, an indigenous nation.

Professor David E. Wilkins holds the McKnight Presidential Professorship in American Indian Studies at the University of Minnesota. His recent book publications include American Indian Politics and the American Political System, 3rd ed (co-authored with Heidi Stark) (2010), Documents of Native American Political Development: 1500s-1933 (2009), and On the Drafting of Tribal Constitutions (by Felix Cohen) (2006).

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Thank you Professor for commenting so articulately on this important issue. In recent years this issue has produced more uncomfortable questions than answers. I know that disenrollment had gone on long before gaming, but now because $ is involved, the attention to it and practice of it has escalated.
One of your paragraphs closes with the phrase "community harmony" and as desirable as that sounds - for most rez's and for most of us Urbanized NDNs that has not been the reality for a long, long time.
Materialistic and technology driven thinking has driven White American since the late 1800's, and American Indians inadvertently got dragged into it - we had no say in the matter. Today, most of us in Indian Country are remnants of what our cultures once were. Conquest continues to do its work, the U.S. has "civilized, Christianized, urbanized our minds" and did its best to exterminate any Indian spirit that remained in us, in order to make us acceptable in their eyes, to shape us into their view of how we "should" be. And that's what most of us are today. We now speak English and live the majority of our lives in English-speaking environments governed by their imposed institutions. Most of us can't speak our own languages, nor do we really know our old ways, and even when we do, those times are for special occasions, not the everyday realities of contemporary life.
So when I've contemplated disenrollment, a main thought has been "what is the actual belief system of those doing the disenrolling?" Is it, to put it very simply - "traditional" or U.S. indoctrinated thinking? If their bottom line is simply $ profit, we can probably safely say it's the latter. But how WOULD they govern "traditionally" since most tribal decision-makers are probably far removed several generations from the old ways?
Sometimes when I've read this decisions I've thought to myself "just how white do those decision-makers want to be? How many big-screen TV's, iPads, and SUV's will make them feel like they've earned a seat at the table with the white guys?" We've heard their responses "it's about practicing our tribal sovereignty". Yes, some of these tribes give money to create and promote efforts that not only benefit tribal members, but other tribes, and non-Indians as well. But still I wonder if they've really thought about - what were the true ways, purposes, and goals of tribal sovereignty long before there were any casinos? I believe that if those old ways are not the first priority, tribal sovereignty is just another American corporate entity. If that's the way they decide, it really is no one else's business.
But to exercise tribal sovereignty in a "traditional" manner, how is that done? Who defines it? Who decides it? On what authority? What are the details that go into each step? Given the close scrutiny of the U.S. government over everything a tribal government does, is it truly even possible? We have to accept the reality that "tribal sovereignty" is largely theoretical - it exists only within limits determined by the federal government - if a tribal government actually attempts to do something the U.S. government does not approve of, it won't happen.
Among the many huge cultural differences between Euro-American thinking and our old ways of thinking is that for Euros, technology and material success simplified every issue into simple tangible hard and fast categories - "black or white", "one or the other", contrarily the heart of our old ways was centered in the shades of grey, the intangible, something's value determined not by the obvious physical characteristics but by its meaning, by possibilities. For example, for Euros smoke was simply the result of a fire, for us smoke was also other things, a prayer, a spirit, a messenger. Another example is that in the old days defining community was the exclusive realm of each tribe with its unique history and culture, not the subject of outside debate. Since Euros took over, they have worked hard to force us to change our thinking to be like theirs - and to a very large extent, they succeeded. In the contemporary world, it IS much easier to think in Euro-American ways. And for Indian Country most of whom are largely indoctrinated into that mode of thinking without thinking about it - truly "traditional" ways are no longer primary for most of us, even if we are aware of them or know them well.
Sometimes I think we should just say it - "ok, white America, you won! Now we've become just as greedy, self-indulgent, hypocritical, superficial, and empty of real character and substance as you." I know this is not true of everyone, but it's increasingly hard to find evidence to the contrary.
The issues for us become - if we choose to try to practice the old ways, how can we know precisely what that was to apply it to contemporary life today? What was "community" - how was it defined, how do we define it in clear specific terms today? Today, it's so much easier to revert to and define things in contemporary Euro-American terms. Due to the history of conquest, contemporary tribal governance cannot help but be heavily influenced by this legacy where it matters most - how we think about ourselves. These are the issues that we have yet to deal with today in how we grapple with things like "disenrollment" and "community".

So, Where does that leave the minority of us who have never been able to register or even find our Native heritage/lineage? Nothing like rampant tyranny run amok.
I would like to find what tribe(s) I am related to. How can I do this before they rule against outsiders by banning new enrollment?